In recent years certain execution measures in case of pledge has become rather controversial in South African law. In this article I compare the Belgian, Dutch and South African legal position pertaining to pledge and its concomitant execution measures. I evaluate the Belgian and Dutch systems because both belong to the civil-law legal family and can therefore serve as excellent examples for future development of the South African law of pledge. The Belgian code is based on the French Code Civil of 1804. For various reasons it interests the South African researcher: It is older than the Dutch code, but could be closer to the South African legal position because it is more closely related to Roman law. In Belgium this necessitated the introduction of specific legislation to address the shortcomings of the code in providing for the needs of the modern commercial world in this regard. The Dutch Burgerlijk Wetboek (BW), on the other hand, is the most recent codification of the European civil-law legal systems. It is more in line with the German Bürgerliches Gesetzbuch (BGB) of 1900, which is generally regarded as a model of scientific legal thinking based on the Roman tradition. The BGB therefore largely influenced modern legal development on the continent and elsewhere.
I shall start with a broad outline of the position in Belgian law, followed by a brief exposition of the concomitant position in the Netherlands. In the conclusion I indicate the differences between these two legal systems, as well as those between these two and the South African law in this regard. I do not discuss the South African legal position, but merely refers to it in so far as it differs from the other systems. I further suggest possible adaptations of the existing South African legal position to bring pledge as a form of real security in line with modern requirements.
Piracy, a crime of antiquity has resurged in recent years in the Gulf of Aden and off the coasts of Somalia and Yemen reaching epidemic proportions and thriving in the socio-economic and political chaos of Somalia. This article will provide an overview of the legal framework embodied in the United Nations Convention on the Law of the Sea (UNCLOS) applicable to the international community to intervene in combating piracy in this context and it argues that this framework has certain shortcomings and has at its foundation certain concepts which are outdated. This article will then illustrate these shortcomings by briefly examining the trends in recent reported piracy incidents. In attempting to identify the reasons for these shortcomings, this article further explores the development UNCLOS and the jurisprudence of early Admiralty Courts and concludes that the scope and definition of piracy in UNCLOS has been the product of a long history of uncertainty and inconsistency in the doctrines of piracy law. This situation necessitated special contemporary measures such as United Nations Security Council Resolutions to deal with the piracy epidemic. This article accordingly suggests that a review of the ambit and scope of the piracy definition of UNCLOS is necessary to successfully combat piracy.
This article enquires whether the present African political landscape is conducive to the effective enforcement of the judgments of the African Court on Human and Peoples' Rights. Even though African leaders have come to realise that unity will foster economic development, for some African leaders the Organisation of African Unity (OAU), now African Union (AU), is a pet project through which to project their influence. For others it is an umbrella to protect them from the international spotlight. For yet others, it is a political block which can speak with one voice in the face of foreign domination, a continuation of the quest for self-determination which was the pith of the struggle for independence from colonial rule. The article examines the current behaviouralism of African leaders and how the political landscape might affect the enforcement of the judgments of the court in domestic jurisdictions. While noting that enforcement depends on the political will of nations, a number of legal measures to ensure the enforcement of the judgments of the court are highlighted.
The right not to be unfairly dismissed is well-recognised in South African labour law. Anecdotal evidence suggests that South Africa may be overregulated in this regard. ILO Convention C158 provides standard-setting guidelines in respect of the termination of any worker's employment. In this contribution, ILO standards are considered and the respective positions in the Netherlands, the United Kingdom, the United States of America and South Africa are compared to ILO Convention C158. The authors seek to establish whether unfair dismissal law in South Africa is out of step with international standards and the position in a selection of foreign jurisdictions.
In order to determine whether a dispute falls within the scope of Regulation (EC) 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, it is necessary to clarify to which proceedings the scope of application of the Regulation is to be determined more specifically. In a recent judgment the European Court of Justice had to decide on the compatibility of anti-suit injunctions with the Regulation to give effect to an arbitration agreement. The court held that, if the subject-matter of the dispute falls within the scope of the Regulation, then a preliminary issue concerning the applicability of an arbitration agreement, including in particular its validity, also falls within the scope of the Regulation. This article is a detailed analysis and a critique of the ECJ judgment.
Following a decision of the High Court of Zimbabwe that the SADC Tribunal is not recognised in the Zimbabwean Constitution as superior to the national courts in Zimbabwe, there was an outcry in sections of the media and civil society that the decision had undermined the regional tribunal. This contribution analyses the 'offending' pronouncements in the High Court decision from an international law perspective. Focusing on the relationship between international law and Zimbabwean law on the one hand, and the relationship between proceedings in international tribunals and national legal proceedings on the other, this contribution critiques the view that the decision of the Zimbabwe High Court undermines the SADC Tribunal. Applying the effect of the dualist- monist debate on the relationship between international law and municipal law, this contribution argues that the decision in question does not negatively affect Zimbabwe's responsibility at international law. However, the contribution concludes that for the sake of judicial integrity national judges should encourage respect for the decisions of international tribunals as far as this is possible within the limits of national constitutions.
The purpose of this paper is to consider the rights of educators in special education by comparing the laws and policies of South Africa and the United States. This discussion begins with background discussion of the special education systems, followed by over-views of the employment rights and duties of educators in both countries. It is recommended that specific legislation dealing with special education in South Africa should be drafted in order to address the needs of learners and educators adequately. In order to succeed in the provision of inclusive education and fair working conditions for educators in South Africa, translating policy into action needs serious attention. It remains essential that educators receive the training, resources and support to which they are entitled, and that the class sizes and workloads are kept within reasonable limits.